Procedures Committee, 18 Sep 2001

Meeting date: Tuesday, September 18, 2001

Official Report 145KB pdf

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Selection Panels

Item 3 is selection panels. For this item, we are joined by Huw Williams of the corporate policy unit and Alison Coull of the directorate of legal services.

I hope that the paper that the committee has received is self-explanatory. Its purpose is to seek an amendment to standing orders to allow a standardised procedure for selection panels made up of members of the Parliament to be set up in connection with the recruitment of office-holders, to enable the Parliament to make a nomination to the Queen for appointments. The other key issue is that, given the length of time that the recruitment process can take, we are suggesting that that process should commence after stage 1 of a bill.

We will go through the paper section by section so that members can ask questions on each one. Are there any questions on the paper's purposes?

No.

What about the background? I have a question on paragraph 4, which advises us that the

"policy on these proposed changes has been noted by the Presiding Officer, SPCB and Bureau."

Whose policy is that and where did it come from?

The policy was drawn up by officials and is based on the existing standing orders for the appointment of the Auditor General for Scotland.

What consultation was undertaken on carrying forward that policy into this procedure?

We discussed the matter briefly with the SPCB, which agreed that the Presiding Officer should write to you, as the convener of the committee, to suggest a standardised procedure for these appointments.

That information was known to the committee. Has the consultation been any wider than that?

No.

Do you think that wider consultation is required?

We prepared a fairly detailed paper for the Parliamentary Bureau, which raised no comments about the paper or the proposals.

Okay. We will leave it at that.

Could we have further explanation of the proposal in paragraph 6 to begin the recruitment process for appointments before a bill has been passed? It seems a little presumptuous—even if the principles of a bill are agreed—to start appointing somebody before the post exists. Later in the paper, a specific example is given of circumstances in which that might be appropriate. However, the change would be a little hasty if it was for the sake of one set of circumstances. Can you give any further explanation of the proposal?

The proposal has been made in view of the length of time that the recruitment process can take. In the case of the freedom of information bill, no formal appointments would be made until the bill received royal assent. However, having the freedom of information commissioner in place early on would allow him or her to undertake the necessary publicity exercises and to generate awareness among the public of his or her work. It would be helpful for that process to begin as early as possible.

There could be problems in relation to the proposed Scottish public sector ombudsman bill, following the retirement of the current Scottish parliamentary ombudsman. When the consultation document was issued, the Executive was not aware of the ombudsman's impending retirement. It would be helpful to have that post filled as early as possible.

The point about the ombudsman is addressed in paragraph 10 of the document. However, if the information commissioner and the public sector ombudsman are not in post already, why is there a huge rush? If we have waited several years to appoint somebody, why should we suddenly rush to appoint them before a bill has been passed? That would be to put the cart before the horse. I do not understand even the legality of the situation. It strikes me as an odd procedure to start advertising a post that does not exist. What if the bill does not create the post? What if Parliament changes its mind before stage 3 and decides that that part of the bill should be deleted?

The appointments would not be made formally and we could cease any recruitment procedures.

But you said that you wanted the ombudsman in place as soon as possible, following the retirement of the existing postholder.

Yes.

How do you reconcile having that person in place as soon as possible with not filling the post until the bill has been passed?

If the recruitment process started earlier, we would be able to identify a nominee to be appointed as soon as royal assent to the bill was given, which would save a considerable amount of time.

When Kenneth Macintosh mentioned legality, I noticed a smile flit across Alison Coull's face. I see that she is desperate to speak.

So you can see some things, convener.

It is just reading that I struggle with.

It is normal practice, both in the Executive and in other organisations, to commence a recruitment process before a bill receives royal assent. You may have noticed that the Executive is advertising for a water services commissioner, although the relevant bill has not even been introduced. The adverts are normally placed on the basis that the posts will be dependent on the bill's receiving royal assent, and that is made clear in the various procedures.

We take the view that there needs to be a provision in standing orders that would allow the Parliament to initiate the recruitment process after stage 1. If there were no such provision, it might be difficult for the Parliament to commence the process at that early stage.

It has been suggested that advertising for a post that did not yet exist could cause a legal problem. In fact, there could be a legal problem if there were no mention in standing orders of a procedure to allow the recruitment process to begin after stage 1. The aim is to provide flexibility. The Parliament would not have to follow the procedure in every case. The recruitment process could start after royal assent had been given. It all depends on the implementation timetable for the legislation concerned.

I am obviously missing something. There is already an ombudsperson, who is resigning. He was presumably appointed under some system. There is a system in place for appointing ombudspersons. We are proposing to introduce a different system.

Yes. The existing Scottish ombudsman was appointed under a transitional order arising from the Scotland Act 1998. That order was transitional on the basis that it would be for the Parliament to decide what procedures it wanted to put in place for the appointment of its ombudsman. The Executive is planning to introduce a Scottish public sector ombudsman bill. The existing ombudsman is the UK ombudsman. The Executive bill would introduce a new Scottish ombudsman. The bill will require the Parliament to make a nomination to Her Majesty. The proposed changes to standing orders are designed to give the Parliament input into that process.

Is the ombudsman the only appointment over which there is a rush or do the same considerations apply to the appointment of a freedom of information commissioner? I share some of Kenneth Macintosh's concerns.

We understand that there is concern about the appointment both of a freedom of information commissioner and of the proposed public sector ombudsman.

At issue is whether the Parliament has the final say. I assume from the paper that the Parliament could say that it did not want to proceed either with the proposed bills or with the appointments. Would there be a conflict of interest if a member who served on the democratic body appointed by the Presiding Officer to make an appointment were to vote against the relevant bill at stages 1, 2 and 3? Would it cause procedural difficulties if the persons making an appointment did not support the bill under which that appointment was being made?

That is a question that our witnesses did not expect.

The issue that the member raises would be for the Presiding Officer to consider when appointing members to the selection panel. I am not sure that a member would be disqualified from serving on the selection panel if they had voted against the general principles of the bill at stage 1. There is no legal reason why that should be the case.

It might be more helpful if, rather than leaving the make-up of selection panels to the Presiding Officer's discretion, we were to make a standing body—such as the conveners liaison group—responsible for making appointments on a regular basis. If members knew in advance the pool from which those making appointments would come, that might prevent potential conflicts of interest of the sort that I have described from arising.

The proposed changes to standing orders would provide a degree of flexibility. They would allow conveners to be appointed to selection panels.

I do not know how often a selection panel is likely to meet or parliamentarians are likely to be involved in selecting a postholder of the sort that we are discussing. Perhaps the conveners and the Presiding Officer could discuss the procedures for appointing members to selection panels and the possibility of having a standing panel. We can canvass opinion on those matters and, if there is a difficulty, we can return to them.

I do not want to go down the road of having a standing panel. We all come to this Parliament new, regardless of our previous experience. It is important that members have the opportunity to take part in as wide a range as possible of the Parliament's activities. For that reason, I would be reluctant to have a static appointments process. It may also be necessary to include on selection panels people who have particularly relevant interests or expertise. The proposed changes to standing orders make a great deal of sense, as they would ensure that a range of people was available to serve on panels. Flexibility is always welcome, given members' diary commitments.

I still have concerns about this proposal. If we start an appointments process before a bill has been passed, we are prejudging Parliament's view on the legislation and creating momentum for it that it may or may not merit. The Parliament may have agreed to the general principles of the bill at stage 1, but there might be important arguments to be had later in the legislative process.

The examples that are given in the paper are non-controversial and I do not suppose that any member of the committee would object to either of the appointments that have been referred to being made speedily. However, it is not difficult to envisage situations in which a particularly contentious bill is going through Parliament. We would then be nominating people to make an appointment about which the Parliament was not agreed. To start the process of appointment before legislation has been agreed finally strikes me as rather odd. Is there no other mechanism for making such appointments? Can we not speed up the appointments process once the legislation has been passed, instead of prejudging the Parliament's view on that legislation?

I do not think that we could speed up the recruitment process. There has to be a period for advertisement and sifting. Once an appointee has been identified, they must give notice to their current employer. Experience has shown that a recruitment process can take between six and 12 months.

The appointments of an independent commissioner to safeguard the public's interests in relation to freedom of information and of a public sector ombudsman are important parts of the freedom of information bill and the Scottish public sector ombudsman bill respectively. We do not envisage many similar appointments coming before the Parliament.

Under the proposed changes to standing orders, it would be open to the Parliament in the case of a controversial appointment to decide not to start the recruitment process after stage 1 but to wait for the bill to receive royal assent.

Who would have the power to decide that? Would it be the Presiding Officer?

Presumably it would be the Presiding Officer, as the person responsible for making appointments to the selection panel.

That is difficult. How would the Presiding Officer come to such a decision? How would the Parliament communicate its view formally to the Presiding Officer, given that the Parliament would or would not be approving the principles of the bill concerned at stage 1?

We could consider introducing a mechanism that would allow the Parliament to determine at stage 1 whether the recruitment process should be commenced.

So we could create a mechanism that would allow the Parliament, after approving the general principles of a bill at stage 1, to indicate that it understood the implications of that decision and to resolve separately to start the recruitment process.

What you have been doing seems perfectly okay, but it strikes me that it is simply what has always been done and that the assumption has been that it would just rattle on and that we would simply accept the proposal. The point has been well made that the decision to start recruitment should be a conscious decision rather than a reflex action.

Within the time scale that you have in mind for the creation of the posts, is there time to rethink your ideas? Would that create huge difficulties for you?

It would not create huge difficulties for us.

Could the paper be refined in order to take this discussion into account? We will give it the earliest possible treatment to ensure that we do not create any problems further down the line.

Yes.

Are we all happy with that?

We have not yet finished considering the rest of the document.

I am sorry, Donald. Do you have other points to raise?

The point that I wish to raise figures in paragraph 12 and in annexe A, paragraph 5 of which reads:

"In appointing members of the Selection Panel, the Presiding Officer shall have regard to the balance of political parties in the Parliament."

Given that there are supposed to be between four and seven members of the panel, not including the convener, I do not see how a balance can be achieved. The balance in the Parliament is fairly clear-cut: for every one Liberal Democrat or Conservative member, there are three Labour members and two SNP members. If there are four members of the panel and the Presiding Officer decides that all four parties should be represented, he is under-representing the two larger parties; if he decides that the smaller parties should be excluded, he is being unfair to them. The figure of four does not allow Sir David Steel to take account of the balance of political parties in the Parliament.

The expression in the report is that the Presiding Officer should "have regard to" the balance of parties in the Parliament. It is not suggested that the selection panel should be absolutely proportional, for the practical reasons that you have mentioned. I assume that the Presiding Officer would ensure that all the significant parties were represented and that the strength of the largest party would be recognised. The panel could not be truly proportional unless it had something like 27 members.

It is possible to be broadly proportional with six members plus a convener. The membership of this committee is broadly proportional, for example.

I thought that the rule meant that the Presiding Officer should try to achieve a rough balance.

If one party does not want to participate in a selection process, would it be able to veto the selection? If the Presiding Officer asked it to take part, would the fact that the party did not choose to participate veto the process?

The only example of that that I can think of would relate to the leader of the Holyrood progress group. However, I would think that, as that group has been established, everyone would want it to run efficiently and effectively.

If anyone decides that they do not want to participate in a process—perhaps because they are opposed to the creation of the post—that is up to them. I do not think that their declining a position on the selection panel would constitute a veto. We are okay on that count.

This may be pedantic, but the final paragraph says that, if there is a division,

"the result is valid only if the number of members who voted is more than one quarter of the total number of seats of members."

That seems bizarre. Is it put into every such document?

I have seen those words before. Would our witnesses care to comment?

The position mirrors the existing provision for the Auditor General.

Presumably, it is designed to ensure that a sufficient number approve the process, so as to give it some validity and credibility. It might be possible, for example, to have only 10 people in the chamber for a division—although that might be below the quorum.

The energetic efforts of our friends, the party whips, ensure that there is a good turnout.

Unless Frank McAveety has an educational trip planned for that afternoon.

Would a motion of the sort that we are discussing always be dealt with at decision time or could it come up during the day? Some votes are taken during the day but usually they are to do with procedural matters rather than substantive issues and it is possible to get a low attendance.

The standing orders seem to indicate that a vote on the sort of issue that we are discussing would be taken at decision time.

In that case, there would have to be a powerful counter-attraction at decision time if the attendance were to be reduced to the level that is mentioned in the final paragraph—perhaps Scotland appearing in the world cup final or something.

My point is not a big deal.